Hastain & Purman, Inc. v. Superior Court

PRESTON, J.

The alternative writ of mandate is discharged and the petition is denied. The following considerations justify this action.

The question is whether or not petitioner’s appeal from a judgment of the Justice’s Court of Montebello Township, Los Angeles County, California, to the Superior Court of said county, authorizes a trial

de nova

therein under section 976 of the Code of Civil Procedure.

The action here under consideration was begun on May 16, 1929, tried upon its merits in said Justice’s Court on August 16, 1929, decided on August 30, 1929, and from the judgment that day entered in favor of plaintiffs, notice of appeal on questions of law and fact, was filed on September 30, 1929. The Superior Court refused to entertain the appeal because not made upon a bill of exceptions or other transcript prepared under chapter 4, title XIII, of the Code of Civil Procedure (secs. 983-988h). The petition is to compel the Superior Court to entertain the appeal and to proceed to a

de nova

trial of the action.

On August 15, 1929, a new section of the Code of Civil Procedure, numbered 982a, went into effect, which provides in judicial townships having a population of thirty thousand or more appeals are not to be taken as provided in said section 976, but must follow the procedure outlined as to municipal courts found in said chapter 4, title XIII, of said code. Admittedly said township here involved, upon the effective date of said act, which was prior to trial and judgment in this case, had a population of more than thirty thousand.

It is true that a formal declaration of the population of said township was not made until after the rendition of the judgment in this case

(County of Los Angeles

v.

Justice’s Court,

208 Cal. 429 [281 Pac. 611]), but it has been repeatedly held by this court that the fact of population at the time in question and not a report or declaration of the fact, controls the situation.

(People

v.

Wong Wang,